Exhibit 27(h)(15)
Target Funds Participation Agreement
(Excludes Products Sold Through W&R Distribution System)
This Fund Participation Agreement ("Agreement"), dated as of the 19th day of
September, 2003 is made by and between MINNESOTA LIFE INSURANCE COMPANY
("Company") on behalf of the Company separate accounts identified on Exhibit A
which is attached hereto and may be amended from time to time ("Variable
Accounts"), and XXXXXXX & XXXX, INC. ("W&R") which serves as the distributor to
the W&R TARGET FUNDS, INC. (the "Funds") listed on Exhibit B.
WHEREAS, Company and W&R mutually desire the inclusion of the Funds as
underlying investment media for variable life insurance policies and/or variable
annuity contracts sold through distributors other than W&R and/or its affiliates
(collectively, the "Contracts") issued by Company; and
WHEREAS, the Contracts allow for the allocation of net amounts received by
Company to separate sub-accounts of the Variable Accounts for investment in
shares of the Funds and other similar funds distributed by W&R and/or its
affiliates; and
WHEREAS, selection of a particular sub-account (corresponding to a particular
Fund) is made by the Contract owner; and/or participants; and such Contract
owner and participants may reallocate their investment options among the
sub-accounts of the Variable Accounts in accordance with the terms of the
Variable Accounts in accordance with the terms of the Variable Accounts and the
Contracts.
NOW THEREFORE, Company and W&R, in consideration of the promises and
undertakings described herein, agree as follows:
1. The scope of this Agreement is limited to the inclusion of the Funds in
variable annuity and variable life contracts sold through distributors other
than W&R and/or its affiliates.
2. (a) Company represents and warrants that the Variable Accounts have been
established and are in good standing under Minnesota Law; and the
Variable Accounts have been registered as unit investment trusts under
the Investment Company Act of 1940, as amended (the "1940 Act") and will
remain so registered, or are exempt from registration pursuant to section
3(c)(11) of the 1940 Act;
(b) Company represents and warrants that it is an insurance company duly
organized and in good standing under the laws of its state of
incorporation and that it has legally and validly established each
Variable Account and Contract;
(c) Company represents and warrants that the Contracts will be registered
under the Securities Act of 1933, as amended ("1933 Act") unless an
exemption from registration is available prior to any issuance or sale of
the Contracts and that the Contracts will be issued in compliance in all
material respects with applicable federal and state laws.
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3. Subject to the terms and conditions of this Agreement, Company shall be
appointed to, and agrees, to act as a limited agent of W&R, for the sole
purpose of receiving instructions for the purchase and redemption of Fund
shares (from Contract owners or participants making investment allocation
decisions under the Contracts) prior to the close of regular trading each
Business Day. "Business Day" shall mean any day on which the New York Stock
Exchange ("NYSE") is open for trading and on which the Funds calculate their
net asset value as set forth in the Funds' most recent Prospectuses and
Statements of Additional Information. Except as particularly stated in this
paragraph, Company shall have no authority to act on behalf of W&R or to
incur any cost or liability on its behalf.
The Funds or their agent will use reasonable best efforts to provide closing
net asset value, change in net asset value, dividend or daily accrual rate
information and capital gain information by 6:00 p.m. Central Time each
Business Day to Company. Company shall use this data to calculate unit
values. Unit values shall be used to process that same Business Day's
Variable Account transactions. Orders for purchases or redemptions shall be
placed with W&R or its specified agent no later than 8:30 a.m. Central Time
of the following Business Day. The Company may aggregate separately all
purchase and/or redemption orders for shares of the Funds that it received
prior to the close of trading on the NYSE (i.e., 3:00 Central time, unless
the NYSE closes earlier in which case such earlier time shall apply). The
Company will not aggregate pre-3:00 Central time trades with post-3:00
Central time trades. Orders for shares of Funds shall be executed at the time
they are received by W&R and at the net asset value price determined as of
the close of trading on the previous Business Day, provided that the Company
represents it has received such orders prior to the close of the NYSE on the
previous Business Day. The Funds may refuse to sell shares to any person or
may suspend or terminate the offering of its shares if such action is
required by law or by regulatory authorities having jurisdiction or is, in
the sole discretion of the directors of the Funds, necessary in the best
interest of the shareholders of the Funds. W&R will not accept any order made
on a conditional basis or subject to any delay or contingency. Company shall
only place purchase orders for shares of Funds on behalf of its customers
whose addresses recorded on Company's books are in a state or other
jurisdiction in which the Funds are registered or qualified for sale, or are
exempt from registration or qualification as confirmed in writing by W&R.
Payment for net purchases shall be wired to a custodial account designated by
W&R and payment for net redemptions will be wired to an account designated by
Company. Dividends and capital gain distributions shall be reinvested in
additional Fund shares at net asset value. Notwithstanding the above, W&R
shall not be held responsible for providing Company with ex-date net asset
value, change in net asset value, dividend or capital gain information when
the New York Stock Exchange is closed, when an emergency exists making the
valuation of net assets not reasonably practicable, or during any period when
the Securities and Exchange Commission ("SEC") has by order permitted the
suspension of pricing shares for the protection of shareholders.
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Issuance and transfer of Fund shares will be by book entry only. Share
certificates will not be issued to Company for any Variable Account. Fund
shares will be recorded in the appropriate title for each Variable Account.
Company agrees to provide W&R, upon request, written reports indicating the
number of shareholders or policyholders that hold interests in the Funds and
such other information (including books and records) that W&R may reasonably
request or as may be necessary or advisable to enable it to comply with any
law, regulation or order.
The Funds shall furnish, on or before the ex-dividend date, notice to Company
of any income dividends or capital gain distributions payable on the shares
of the Funds. Company hereby elects to receive all such income dividends and
capital gain distributions as are payable on a Fund's shares in additional
shares of the Fund. The Funds shall notify Company of the number of shares so
issued as payment of such dividends and distributions.
In the event adjustments are required to correct any material error in the
computation of the net asset value of a Fund's shares, the Fund shall notify
the Company as soon as practicable after discovering the need for those
adjustments which result in a reimbursement to a Variable Account in
accordance with the Fund's then current policies on reimbursement, which the
Fund represents are consistent with applicable SEC standards. If an
adjustment is to be made in accordance with such policies to correct an error
which has caused a Variable Account to receive an amount different than that
to which it is entitled, the Fund shall make all necessary adjustments to the
number of shares owned in the Variable Account and distribute to the Variable
Account the amount of such underpayment for credit to Company's
Contract/Policy Owners.
4. All expenses incident to the performance by W&R and the Funds under this
Agreement shall be paid by W&R and the Funds. W & R shall pay fees or other
compensation to the Company under this Agreement as provided on Schedule C. W
& R's obligation to pay compensation or fees as provided in Schedule C shall
survive termination of this Agreement.
W&R shall promptly provide Company (or its designee), or cause Company (or
its designee) to be provided with, a reasonable quantity of the Funds'
Statements of Additional Information and any supplements, and a camera-ready
copy of the Funds' Prospectus and any Supplements or at the option of the
Company, a camera-ready copy of the portions of the Funds' Prospectus, and
any supplements, pertaining specifically to the Funds used in the Company's
Contracts, for use by Company in producing a combined prospectus for each
Contract incorporating both the Contract Prospectus and the Funds'
Prospectus.
If the Company elects to include any materials provided by W & R or the
Funds, specifically prospectuses, SAIs, shareholder reports and proxy
materials, on its web site or in any other computer or electronic format, the
Company assumes sole responsibility for maintaining such materials in the
form provided by W & R or the Funds and for promptly replacing such materials
with all updates provided by W & R or the Funds. W & R or the Funds agree to
provide all such materials requested by the Company in a Portable Document
Format (PDF,
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both camera ready and low resolution enhanced) in a timely fashion at no
additional cost, together with such other formats as may be mutually agreed
upon.
Each Fund (at its expense) shall provide Company with copies of any
Fund-sponsored proxy materials in such quantity as Company shall reasonably
require for distribution to contract owners. The Fund shall bear the costs of
distributing Fund proxy materials (or similar materials such as voting
solicitation instructions). Company shall bear the cost of distributing
prospectuses and statements of additional information to contract owners.
Company assumes sole responsibility for ensuring that such materials are
delivered to contract owners in accordance with applicable federal and state
securities laws.
If and to the extent required by law, Company shall: (i) solicit voting
instructions from contract owners; (ii) vote the Fund(s) shares in accordance
with the instructions received from contract owners; and (iii) vote Fund(s)
shares for which no instructions have been received; so long as and to the
extent that the Commission continues to interpret the 1940 Act to require
pass-through voting privileges for variable contract owners. The Company
reserves the right to vote Fund shares held in any segregated asset account
in its own right, to the extent permitted by law. Company and its agents will
in no way recommend action in connection with or oppose or interfere with the
solicitation of proxies for the Fund shares held for the benefit of such
Contract owners.
5. Company and its agents shall make no representations concerning the Funds or
Fund shares except those contained in the Funds' then current Prospectuses,
Statements of Additional Information or other documents produced by W&R (or
an entity on its behalf) which contain information about the Funds. Company
agrees to allow at least five (5) Business Days for W&R to review any
advertising and sales literature drafted by Company (or agents on its behalf)
with respect to the Funds prior to submitting such material to any regulator.
6. W&R represents that the Funds are currently qualified as regulated investment
companies under Subchapter M of the Internal Revenue Code of 1986 (the
"Code"), as amended, and that the Funds shall make every effort to maintain
such qualification. W&R shall promptly notify Company upon having a
reasonable basis for believing that the Funds have ceased to so qualify, or
that they may not qualify as such in the future.
W&R represents that the Funds currently comply with the diversification
requirements pursuant to Section 817(h) of the Code and Section 1.817-5(b) of
the Federal Tax Regulations and that the Funds will make every effort to
maintain the Funds' compliance with such diversification requirements, unless
the Funds are otherwise exempt from section 817(h) and/or except as otherwise
disclosed in the Funds' prospectus. W&R will notify Company promptly upon
having a reasonable basis for believing that the Funds have ceased to so
qualify, or that the Funds might not so qualify in the future. Unless
otherwise exempt, W&R shall provide to Company a statement indicating
compliance with Section 817(h) and a schedule of investment holdings, to be
received by Company no later than twenty-five (25) days following the end of
each calendar quarter.
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Company represents that the Contracts are currently, and at the time of
issuance will be, treated as annuity contracts or life insurance policies,
whichever is appropriate under applicable provisions of the Code, and that it
shall make every effort to maintain such treatment. Company will promptly
notify W&R upon having a reasonable basis for believing that the Contracts
have ceased to be treated as annuity contracts or life insurance polices, or
that the Contracts may not be so treated in the future.
Unless the Funds are exempt from the requirements of section 817(h), Company
represents that each Variable Account is a "segregated asset account" and
that interests in each Variable Account are offered exclusively through the
purchase of a "variable contract", within the meaning of such terms pursuant
to section 1.817-5(f)(2) of the Federal Tax Regulations, that it shall make
every effort to continue to meet such definitional requirements, and that it
shall notify W&R immediately upon having a reasonable basis for believing
that such requirements have ceased to be met or that they may not be met in
the future.
The Funds represent and warrant that each is duly organized and validly
existing under the laws of Maryland and that each does and will comply in all
material respects with the 1940 Act and the rules and regulations thereunder.
The Funds represent and warrant that the Fund shares offered and sold
pursuant to this Agreement will be registered under the 1933 Act and each
Fund shall be registered under the 1940 Act prior to and at the time of any
issuance or sale of such shares. Each Fund shall amend its registration
statement under the 1933 Act and the 1940 Act from time to time as required
in order to effect the continuous offering of its shares. Each Fund shall
register and qualify its shares for sale in accordance with the laws of the
various states only if and to the extent deemed advisable by the Fund or W&R.
Each Fund represents and warrants that it, its directors, officers, employees
and other dealing with the money or securities, or both, of a Fund shall at
all times be covered by a blanket fidelity bond or similar coverage for the
benefit of the Fund in an amount not less than the minimum coverage required
by Rule 17g-1 or other regulations under the 1940 Act. Such bond shall
include coverage for larceny and embezzlement and be issued by a reputable
bonding company.
W&R represents and warrants that it is currently and will continue to be a
registered-broker dealer and member in good standing with the National
Association of Securities Dealers ("NASD").
7. Within five (5) Business Days after the end of each calendar month, the Funds
or their agent shall provide Company a monthly statement of account, which
shall confirm all transactions made during that particular month in the
Variable Accounts.
8. (a) The directors of the Funds will monitor the operations of the Funds for
the existence of any material irreconcilable conflict among the interest of
all Contract owners of all separate accounts investing in the Funds. W&R
shall notify Company of the potential
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for, or the determination of, such irreconcilable material conflict. An
irreconcilable conflict may arise, among other things, from (i) an action by
any state insurance regulatory authority; (ii) a change in applicable
insurance laws or regulations; (iii) a tax ruling or provision of the Code or
the regulations thereunder; (iv) any other development relating to the tax
treatment of insurers, contract holders or policy owners or beneficiaries of
variable annuity or variable life insurance products; (v) the manner in which
the investments of the Funds are managed; (vi) a difference in voting
instructions given by variable annuity contract owners, on the one hand, and
variable life insurance policy owners on the other hand, or by the contract
holders or policy owners of different participating insurance companies; or
(vii) a decision by an insurer to override the voting instructions of
participating contract owners.
(b) Company is responsible for reporting any potential or existing conflicts
to W&R and the Funds. Company will be responsible for assisting the
directors in carrying out their responsibilities under this provision by
providing the directors with all information reasonably necessary for
them to consider the issues raised. W&R shall report to the directors any
such conflict that comes to the attention of W&R.
(c) If a majority of the directors of the Funds or a majority of the
disinterested directors determine that a material irreconcilable conflict
exists involving Company, Company shall, at its expense and to the extent
reasonably practicable (as determined by a majority of the disinterested
directors), take whatever steps are necessary to eliminate the
irreconcilable material conflict, including, but not limited to,
withdrawing the assets allocable to some or all of the Variable Accounts
from the Funds and reinvesting such assets in a different investment
medium, including another Fund, offering to the affected Contract owners
the option of making such a change or offering a new funding medium,
including a registered investment company.
For purposes of this provision, the directors or the disinterested directors
shall determine whether any proposed action adequately remedies any
irreconcilable material conflict. In the event of a determination of an
irreconcilable material conflict, the directors shall cause the Funds to take
such action, such as establishment of one or more additional Funds, as they
reasonably determine to be in the interest of all shareholders and Contract
owners in view of all the applicable factors such as the cost, feasibility,
tax, regulatory and other considerations. In no event will the Funds be
required by this provision to establish a new funding medium for any
Contract.
Company shall not be required by this provision to establish a new funding
medium for any Contract if an offer to do so has been declined by a vote of a
majority of the Contract owners materially adversely affected by the material
irreconcilable conflict. Company will decline an offer to establish a new
funding medium only if Company believes it is in the best interest of its
Contract owners.
9. This Agreement shall terminate as to the sale and issuance of Fund shares in
new Contracts (i.e., Contracts issued after the effective date of
termination):
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(a) at the option of Company or W&R upon at least 60 days advance written
notice to the other;
(b) at any time, upon W&R's election, if the Funds determine that
liquidation of the Funds is in the best interest of the Funds and their
beneficial owners. Reasonable advance notice of election to liquidate
shall be furnished by W&R to permit the substitution of Fund shares with
the shares of another investment company pursuant to SEC regulation;
(c) if the Contracts are not treated as annuity contracts or life insurance
policies by the applicable regulators or under applicable rules or
regulations;
(d) if the Variable Accounts are not deemed "segregated asset accounts" by
the applicable regulators or under applicable rules or regulations;
(e) at the option of Company, if Fund shares are not available for any
reason to meet the requirements of Contracts as determined by Company.
(f) with respect only to the applicable Fund, upon a decision by Company
based on reasonable cause, in accordance with regulations of the SEC, to
substitute such Fund shares with the shares of another investment
company for Contracts for which the Fund shares have been selected to
serve as the underlying investment medium. Company shall give at least
60 days written notice to the Funds and W&R of any decision to
substitute Fund shares;
(g) upon 60 days notice upon assignment of this Agreement unless such
assignment is made with the written consent of each other party; and
(h) in the event Fund shares are not registered, issued or sold pursuant to
Federal law, or such law precludes the use of Fund shares as an
underlying investment medium of Contracts issued or to be issued by
Company. Prompt written notice shall be given by either party to the
other in the event the conditions of this provision occur.
10. All notices sent under this Agreement shall be given in writing, and shall
be delivered personally, or sent by fax, or by a nationally-recognized
overnight courier, postage prepaid. All such notices shall be deemed to have
been duly given when so delivered personally or sent by fax, with receipt
confirmed, or one (1) business day after the date of deposit with such
nationally-recognized overnight courier. All such notices to Company, W&R or
the Funds shall be delivered to:
Minnesota Life Insurance Company
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxx 00000
Attention: General Counsel
Minnesota Life Insurance Company
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx, Executive Vice President
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Xxxxxxx & Xxxx, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Legal Department
W&R Target Funds, Inc.
0000 Xxxxx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Treasurer
All such notices to Company, W&R and the Funds shall be delivered to their
respective addresses as listed above, or such other address as Company, W&R
and/or the Funds may have furnished in writing to the other parties in
accordance herewith.
11. (a) Company agrees to reimburse and/or indemnify and hold harmless W&R, the
Funds, and each of their directors, officers, employees, agents and each
person, if any, who controls or is controlled by W&R within the meaning
of the Securities Act of 1933 (the "1933 Act") (collectively,
"Affiliated Party") against any losses, claims, damages or liabilities
("Losses") to which W&R or any such Affiliated Party may become subject,
under the 1933 Act or otherwise, insofar as such Losses arise out of or
are based upon, but not limited to:
(i) any untrue statement or alleged untrue statement of any material
fact contained in information furnished by Company;
(ii) the omission or the alleged omission to state in the Registration
Statements or Prospectuses of the Variable Accounts, or Contract,
or in any sales literature generated by Company on behalf of the
Variable Accounts or Contracts, a material fact required to be
stated therein or necessary to make the statements therein not
misleading;
(iii) statements or representations of Company or its agents, with
respect to the sale and distribution of Contracts for which Fund
shares are an underlying investment, or wrongful conduct of
Company or its agents with respect to sale of acquisition of
Variable Insurance Products or Fund shares;
(iv) the failure of Company to provide the services and furnish the
materials under the terms of this Agreement;
(v) a material breach of this Agreement or of any of the
representations or warranties contained herein; or
(vi) any failure to register the Contracts or the Variable Accounts
under federal or state securities laws, state insurance laws or to
otherwise comply with such laws, rules, regulations or orders.
Provided however, that Company shall not be liable in any such case to
the extent any such losses arise out of or are based upon an act,
statement, omission or representation or alleged act, alleged statement,
alleged omission or alleged representation which was made
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in reliance upon and in conformity with written information furnished to
Company by or on behalf of W&R specifically for use therein.
Company shall reimburse any legal or other expenses reasonably incurred
by W&R, the Funds, or any Affiliated Party in connection with
investigating or defending any such Losses, provided, however, that
Company shall have prior approval of the use of said counsel or the
expenditure of said fees.
This indemnity agreement shall be in addition to any liability which
Company may otherwise have.
(b) W&R and the Funds agree to indemnify and hold harmless Company and each
of its directors, officers, employees, agents and each person,
(collectively, "Company Affiliated Party"), who controls Company within
the meaning of the 1933 Act against any Losses to which Company or any
such Company Affiliated Party may become subject, under the 1933 Act or
otherwise, insofar as such Losses arise out of or are based upon; but
not limited to:
(i) any untrue statement or alleged untrue statement of any material
fact contained in any information furnished by W&R or the Funds,
including but not limited to, the Registration Statements,
Prospectuses or sales literature of the Funds;
(ii) the omission or the alleged omission to state in the Registration
Statements or Prospectuses of the Funds or in any sales literature
generated by the Funds or their affiliates a material fact
required to be stated therein or necessary to make the statements
therein not misleading;
(iii) W&R's failure to keep the Funds fully diversified and qualified as
regulated investment companies as required by the applicable
provisions of the Code, the 1940 Act, and the applicable
regulations promulgated thereunder;
(iv) the failure of W&R to provide the services and furnish the
materials under the terms of this Agreement; (v) a material breach
of this Agreement or of any of the representations or warranties
contained herein; or (vi) any failure to register the Funds under
federal or state securities laws or to otherwise comply with such
laws, rules, regulations or orders.
Provided however, that W&R and the Funds shall not be liable in any such
case to the extent that any such losses arise out of or are based upon
an act, statement, omission or representation or alleged act, alleged
statement, alleged omission or alleged representation which was made in
reliance upon or in conformity with written information furnished to W&R
or the Funds by Company specifically for use therein.
W&R and the Funds shall reimburse any reasonable legal or other expenses
reasonably incurred by Company or any Company Affiliated Party in
connection with investigating or defending any such Losses, provided,
however, that W&R and the Funds shall have prior approval of the use of
said counsel or the expenditure of said fees.
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This indemnity agreement will be in addition to any liability which W&R
and the Funds may otherwise have.
(c) Each party shall promptly notify the other party(ies) in writing of any
situation which presents or appears to involve a claim which may be the
subject of indemnification under this Agreement and the indemnifying
party shall have the option to defend against any such claim. In the
event the indemnifying party so elects, it shall notify the indemnified
party and shall assume the defense of such claim, and the indemnified
party shall cooperate fully with the indemnifying party, at the
indemnifying party's expense, in the defense of such claim.
Notwithstanding the foregoing, the indemnified party shall be entitled
to participate in the defense of such claim at its own expense through
counsel of its own choosing. Neither party shall admit to wrong-doing
nor make any compromise in any action or proceeding which may result in
a finding of wrongdoing by the other party without the other party's
prior written consent. Any notice given by the indemnifying party to an
indemnified party or participation in or control of the litigation of
any such claim by the indemnifying party shall in no event be deemed to
be an admission by the indemnifying party of culpability, and the
indemnifying party shall be free to contest liability among the parties
with respect to the claim.
12. Subject to Section 9(f) of this Agreement, W&R may request or Company may
initiate the filing of a substitution application pursuant to Section 26(c)
of the 1940 Act to substitute shares of a Fund held by a Company Variable
Account for another investment media ("Substitution Application"). The
costs associated with a Substitution Application shall be allocated as
follows:
(a) In the event W&R requests Company to submit a Substitution Application,
W&R shall reimburse Company for all reasonable costs incurred by Company
with respect to such Substitution Application. W&R shall be obligated to
reimburse Company under this provision irrespective of whether the
Substitution Application requested by W&R is effectuated.
(b) In the event Company initiates a Substitution Application and the Fund
being substituted is offered by separate accounts of companies other
than Company, Company shall bear all costs associated with the
Substitution Application irrespective of whether the Substitution
Application is effectuated.
(c) In the event Company initiates a Substitution Application in accordance
with Section 9(f), Company shall bear the costs incurred in the
transfer.
13. The forbearance or neglect of any party to insist upon strict compliance by
another party with any of the provisions of this Agreement, whether
continuing or not, or to declare a forfeiture of termination against the
other parties, shall not be construed as a waiver of any of the rights or
privileges of any party hereunder. No waiver of any right or privilege of
any party arising from any default or failure of performance by any party
shall affect the rights or privileges of the other parties in the event of a
further default or failure of performance.
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14. This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of Kansas, without respect to its
choice of law provisions and in accordance with the 1940 Act. In the case of
any conflict, the 1940 Act shall control.
15. Each party hereby represents and warrants to the other that the persons
executing this Agreement on its behalf are duly authorized and empowered to
execute and deliver the Agreement and that the Agreement constitutes its
legal, valid and binding obligation, enforceable against it in accordance
with its terms. Except as particularly set forth herein, neither party
assumes any responsibility hereunder, and will not be liable to the other
for any damage, loss of data, delay or any other loss whatsoever caused by
events beyond its reasonable control.
16. Company acknowledges that the identity of W&R's (and its affiliates' and/or
subsidiaries') customers and all information maintained about those
customers constitute the valuable property of W&R. Company agrees that,
should it come into contact or possession of any such information
(including, but not limited to, lists or compilations of the identity of
such customers), Company shall hold such information or property in
confidence and shall not use, disclose or distribute any such information or
property except with W&R's prior written consent or as required by law or
judicial process.
W&R acknowledges that the identity of Company's (and its affiliates' and/or
subsidiaries') customers and all information maintained about those
customers constitute the valuable property of Company. W&R agrees that,
should it come into contact or possession of any such information
(including, but not limited to, lists or compilations of the identity of
such customers), W&R shall hold such information or property in confidence
and shall not use, disclose or distribute any such information or property
except with Company's prior written consent or as required by law or
judicial process.
This section shall survive the expiration or termination of this Agreement.
17. Nothing in this Agreement shall be deemed to create a partnership or joint
venture by and among the parties hereto.
18. Except to amend Exhibit A, or as otherwise provided in this Agreement, this
Agreement may not be amended or modified except by a written amendment
executed by each of the parties.
19. Each party shall cooperate with each other party and all appropriate
government authorities (including without limitation the Commission, the
National Association of Securities Dealers, Inc. and state insurance
regulator) and shall permit such authorities reasonable access to its books
and records in connection with any investigation or inquiry relating to this
Agreement or the transactions contemplated hereby.
20. The parties of this Agreement acknowledge and agree that this Agreement
shall not be exclusive in any respect.
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21. This Agreement may be executed by facsimile signature and it may be executed
in one or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
MINNESOTA LIFE INSURANCE COMPANY
___________________________________
By:
Title
XXXXXXX & XXXX, INC.
___________________________________
By: Xxxxxx X. Xxxxx
Title: Executive Vice President
W&R TARGET FUNDS, INC.
___________________________________
By: Xxxxx X. Xxxxxxxx
Title: President
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EXHIBIT A
Variable Accounts of Minnesota Life Insurance Company
1. Minnesota Life Variable Universal Life Account
2. Variable Annuity Account
3. Minnesota Life Variable Life Account
4. Variable Fund D
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EXHIBIT B
W&R Target Funds, Inc.
Funds Available to Variable Accounts
Balanced
Growth
Core Equity
Value
Small Cap Growth
International
Small Cap Value
Micro Cap Growth
Asset Strategy
Science and Technology
International II
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EXHIBIT C
Fees or Other Compensation
(a) Compensation described in this Exhibit C shall apply to all assets invested
in the Funds in connection with the Contracts (hereinafter the "Aggregated
Assets").
(b) Assets Under Management. Each quarter, W&R shall calculate and pay to
Company a fee that shall be equal to forty-five (45) basis points, on an
annualized basis, of the average daily account value of the Aggregated
Assets (including any seed money provided by Company or any of its
affiliates), provided, however, that the fee is subject to change pursuant
to Paragraphs (c) and (d) below. The fee (the "Total Fee") shall include and
not be in addition to the payment by W&R of the 12b-1 fees received by W&R
from the Funds relating to the Aggregated Assets. W&R may, at its option,
pay any portion of the Total Fee due which is attributable to 12b-1 fees to
the underwriter of the Contracts
(c) Changes in Law. If a change in the law requires a reduction in the fees paid
by a pooled investment vehicle pursuant to Section 12b-1 of the Investment
Company Act of 1940 (or its functional equivalent), and if the Funds are
required to reduce the 12b-1 fees they pay that are based upon the value of
the Aggregated Assets (including seed money provided by Company or any of
its affiliates) as a result of such change in the law, then there shall be a
corresponding reduction in the amount of the Total Fee due pursuant to
above.
(d) Voluntary Increase in 12b-1 Fees. If a Fund voluntarily increases the fees
it pays pursuant to Section 12b-1 of the Investment Company Act of 1940 (or
its functional equivalent) that are based upon the value of the Aggregated
Assets (including seed money provided by Company or any of its affiliates),
then there shall be a corresponding increase in the amount of the Total Fee
due pursuant to above.
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